Select Committee on Legislation and Security debate -
Wednesday, 5 Oct 1994

SECTION 7.

Question proposed: "That section 7 stand part of the Bill."

Mr. Shatter

Section 7 is about the establishment of the Refugee Applications Board. The Minister talked about transparency and, while we will come to the Schedule which details the membership of that board at a later stage, I want to make a preliminary remark on the need to ensure that this board is seen to be independent.

A number of groups and organisations have taken issue with the composition of the board. There are different types of board structure. One can have an individual making the first decision and a tribunal or a board for an appeal, or it can be the other way around. The Minister seems to have adopted the approach of a tribunal of more than one person initially. If this approach is to be adopted the personnel the Minister intends to appoint to this tribunal is entirely wrong. The tribunal should not be made up of an independent lawyer and two civil servants, one from the Department of Justice and one from the Department of Foreign Affairs.

In the context of such a tribunal those Departments should certainly have an input in the sense of bringing their observations to the knowledge of the tribunal on any application. However I urge the Minister to change the personnel in that tribunal. The three people should be entirely independent and should be seen to be so. Simply appointing civil servants from the Department of Justice and the Department of Foreign Affairs will not achieve that. It is the cause of some disappointment that the Minister is suggesting the matter be approached in this way. If we are to have a three person tribunal it should be composed of people who are not civil servants and who are not attached to any Department. It should be entirely independent of Government and the Civil Service.

Even if the Minister says the people appointed will act independently there are great psychological difficulties for officials acting independently of their Departments. One or both Departments may make a case that someone should not be granted refugee status for particular reasons. That case may be wrong and substantial evidence given or representations made may show why. A decision will have to be made at the end of the day and the Minister is asking two civil servants to make an adjudication on an issue in respect of which their colleagues have formed a view. It is entirely the wrong approach.

The Minister means to put a good structure in place but she should reconsider the personnel to be appointed to the tribunal. I emphasise that it should not be composed of officials from the Departments of Justice and Foreign Affairs. They should be three independent people. The chairperson should have legal training but it is not essential that the other two have legal training. What they need is a degree of insight and common sense.

The difficulty is that when a tribunal as envisaged by the Minister reaches decisions in controversial cases with an entirely independent mind and those decisions give rise to public controversy, appearing to be largely following the view of Government Departments, there will be a perception that the tribunal is not operating independently. It is a bad start and I ask the Minister, before we get to the Schedule, to consider proposing amendments with regard to who should be appointed to this tribunal and who should act as the adjudicators in applications for political status.

Mr. G. Mitchell

It is nice to be upstaged by someone from my own party. I put down many amendments to this Bill, some of which deal with the First and Second Schedules which we will reach in due course. Now that Deputy Shatter has contributed on those amendments I hope we will all have an opportunity to make a contribution.

I too am concerned about the membership of the board and tribunal and have put forward constructive suggestions as to who the Minister might consult on the appointment of a member of an organisation like Amnesty International, the Refugee Council or even the St. Vincent de Paul Society, to the board. The Minister should consult with the Minister for Social Welfare and appoint somebody from a social organisation background with knowledge and experience in this area.

I am concerned about the membership of the board and the tribunal which is why I have tabled two amendments. Now we have entered into discussion without them being moved. It is a matter which I addressed earlier and I gave notice some weeks ago of my intention to seek amendments here. I am concerned.

Under this section we are agreeing to the establishment of a Refugee Applications Board. Section 7 (2) provides that the First Schedule shall have effect in relation to the board. I want to keep my detailed comments until we reach the First Schedule — I will put down a marker on Second Stage — and the appropriate amendment. The Minister has indicated that she will consider this matter but we need to debate it here.

Ms O'Donnell

I share Deputy Shatter's concern. Many organisations who work in the human rights field here, such as Amnesty International, are concerned that this board should consist of individuals whose status clearly demonstrates their independence and their capacity to make a decision free of the persuasion of their respective groups. We are setting up a quasi-judicial body which will put in place the procedures to give a fair hearing to asylum applications.

We have a great tradition of the independence of our Judiciary. In a quasi-judicial body such as this it is vital that the composition and independence of the membership of the board be guaranteed and this is dealt with in the Schedule. My amendment to the Schedule addresses this point but it was ruled out of order because I was proposing an addition to the two civil servants and the independent barrister or solicitor who would chair the board. I proposed that there should be a representative of a non-governmental organisation concerned who possesses training and expertise in human rights law and practice. It is a pity that, because there is a potential charge on the Exchequer, our hands are tied in discussing the composition of this tribunal and that we cannot contemplate having such a non-governmental representative on the applications board.

It is vital that our citizens have confidence in the composition of this tribunal. It may well be that the membership as outlined by the Minister will be independent but we have a very bad reputation here in our treatment of asylum seekers. There is no example that we can point to of this State being generous or fair in its treatment of refugees. We would be involved in a collective attack of amnesia if we were to imagine that we have a good record on this. We have a well documented bad record. It has taken us 38 years to introduce proper procedures. This vital component of an independent and balanced membership of the applications board is too important to be dealt with in the Schedule. It is fundamental to the Bill.

Mr. Rabbitte

I agree with the remarks by Deputy Shatter, and supported by Deputies Mitchell and O'Donnell. My colleague, Deputy Gilmore, tabled an amendment to the First Schedule, requiring the inclusion of at least one representative of a non-governmental organisation with competence in the human rights field. That is important having regard to our record, as Deputy O'Donnell said, and having regard to the necessity of restoring confidence in this area. The composition of the board as suggested by the Minister would undermine the value of the Bill. That is not to cast aspersions in any way on civil servants of either Department. The independence of the board is essential and it must be agreed and acknowledged publicly to be independent. The proposed composition of the board would not be so.

Mrs. Geoghegan-Quinn

Chairman, we have skipped from section 7 through 27 sections and to the First Schedule. That is not a proper way of doing business. Both I, and other people, need to discuss the sections in between. I strongly support what Deputy Mitchell said. He had very strong comments to make on the refugee applications board, its composition, the way it was to perform its duties and so on when we discussed this issue last week. I would like to respond to that, I may be of help in some areas and we might disagree in other areas, but to get into a detailed discussion now on the composition of the refugee applications board would be unfair to all the Members who came here to discuss the legislation section by section. We will all have plenty to say when we get to the First Schedule but it is not fair to jump from section 7 to the First Schedule.

Chairman

Has any Member anything further to say on section 7? Minister, do you wish to comment on section 7?

Mrs. Geoghegan-Quinn

No, because there were no comments made on relation section 7. All the comments made were on the First Schedule.

Chairman

Have you a comment to make on section 7, Deputy Shatter? I am not dealing with any other aspect of the Bill.

Mr. Shatter

I do not wish to upset the Minister in any way because she knows I welcome this Bill, but section 7 (2) states that the provisions of the First Schedule shall have effect in relation to the board. If we do not like the provisions of the First Schedule we can oppose section 7 (2) because that is the subsection which legislatively takes the First Schedule on board. We should not get lost in a procedural wrangle, Chairman, but it is my experience over the years that when that type of subsection occurs in a Bill making a direct reference to a Schedule without that subsection the Schedule does not form part of the Bill.

It is quite usual to have some discussion at this stage on what is contained in the Schedule that is being adopted. I was simply raising those issues and it is reasonable to do so. I did not mean to cause anyone undue distress by doing so, it just seemed the appropriate time to raise them. There is no point in this committee adopting section 7 (2) and later saying that we do not like the Schedule. We can amend it later but it is quite reasonable to lay down a marker to the effect that the Schedule sets out the specific composition of this board and I do not agree with that composition. There is nothing remarkable about that.

Mr. Rabbitte

Appointments and all of that are delicate subjects at the moment. I understand why the Minister would be sensitive. Deputy Shatter has opened an awkward door.

Chairman

Is section 7 agreed?

Mrs. Geoghegan-Quinn

I wish to make a point on it. You can correct me if I am wrong, Chairman, but as I understand it, even if we adopted section 7 (1) and (2), which put the provisions of the First Schedule into effect, we could still decide when we come to discuss it to scrap the First Schedule. Adopting it here has no bearing on what we might do when we come to the First Schedule.

Mr. Shatter

All I am asking the Minister to do is to indicate that she will give this further consideration when we come to discuss it.

Mrs. Geoghegan-Quinn

I indicated that in my reply to Deputy Mitchell the last day.

Mr. Carey

I am critical of the terms being used in this Bill. The title "Refugee Applications Board" is unsuitable because, as I understand it, when refugees apply they like to have their cases administered in some kind of legal fashion. They would like to see some sort of justice administered. The concept of a Refugee Applications Board is akin to applying to one's local soccer or GAA club to be looked after. Most of the difficulties in the Department's dealings with applications occur in my constituency, particularly when applications are made at the weekend. Other speakers have indicated that difficulties have been experienced and people have been sent back to different countries. I have not screamed too much about such people but other Deputies have made a virtue of it. I am concerned that the good name of Shannon Airport will be affected. The proposed board is a Dublin one and will not have any relationship with my constituency. The Minister knows full well that the greater number of applications for refugee status are received at Shannon and this is likely to remain the case. I am concerned that the status of people and the processing of applications should be properly explained in the Bill.

I understand that there are asylum seeker courts at international airports on the west coast of America. It takes us on this side of the world a few years to catch up with what is happening on the other side of the Atlantic. It has always puzzled me why the hackles of Amnesty International and other bodies are not raised because of the flood of Asians who arrive on the west coast of the US. People who go to these courts realise they are getting justice. I am afraid that, in spite of the Refugee Applications Board and because of the hush-hush to which Deputy Shatter referred, Amnesty International, and other non-governmental organisations, will still have the same doubts about the veracity of what is intended by this State.

Mrs. Geoghegan-Quinn

My reason for updating the law on refugees is to make sure it removes the doubts people might have on the way we treat refugees and asylum seekers and to bring a transparency into the way we do our business. This is the reason for setting up a Refugee Applications Board which will be removed from the Department of Justice and will not be located or housed in it. It will have its own offices. Its staff will be totally independent of my Department and will be trained not by that Department but by the UNHCR. In doing all those things and setting up a board which is independent of the Department, nobody suggested that the board would have to be based in Dublin. It could be based anywhere in the country such as the south, the mid-west or the east.

I do not accept Deputy Carey's argument that the board will not do its business in a fair way and it decisions will not be open to criticism. All the provisions of the Bill, including the setting up of a Refugee Applications Board, allow the functions being conferred by this legislation to be performed in an open way and to be open to criticism by people if they are not happy with them. During the preparation of the legislation we were in close contact with the UNHCR and other non-governmental agencies which have a keen interest in this area. Since the publication of the Bill, those organisations and individuals have made representations on certain aspects of it with which they are not happy and would like to see strengthened or changed and I have an open mind on this. Deputies have also made suggestions about the Bill and I will bear these in mind. I will be prepared to accept them now, between now and Report Stage or in the Seanad. There is nothing written in stone in relation to the Refugee Applications Board at this stage. We must discuss this in greater detail when we come to the First Schedule, which deals in greater depth with the make up of the board.

Question put and agreed to.